Environmental Review Tribunal has quashed an attempt by a
municipality to bring a Charter challenge to Ontario's wind
energy approval rules. Undoubtedly, however, the same Charter
challenge will be brought soon by one or more individuals.
7. Everyone has the right to life,
liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental
Numerous appeals have been launched on the grounds that wind
farms threaten human health. Every one of them has failed to meet
the legal test for stopping a renewable energy project. That is why
wind opponents now want to change the test.
The Tribunal gave several reasons for quashing the motion,
including the fact that it was brought too late:
... if the circumstances become
known earlier than 15 days before a hearing (which will almost
always be the case), the notice must be served when those
circumstances became known, unless otherwise ordered by the
In addition, no corporation can assert a s.7 Charter
right; such rights belong only to human beings:
 An appellant who is an
individual human being could raise a s. 7 Charter claim relating to
human health in an environmental context. Human health and security
of the person can be adversely affected by environmental factors
such as pollution, and there is no general reason to bar an
individual from raising a s. 7 "security of the
claim based on adverse impacts resulting from a change to the
natural environment. ... the Tribunal can hear questions of
law, including constitutional questions that relate to litigants
and matters within its jurisdiction....
 ...it is clear to the Tribunal that the Municipality, as a
municipal corporation, cannot pursue a s. 7 claim in
its own right...
The clear answer is that the
Tribunal cannot consider the Municipality's claim that s. 47.5
and 142.1 of the EPA allow for the violation of the
Municipality's s. 7 rights because the Municipality has no such
Finally, there was no reason to allow the municipality to speak
for individuals who do have Charter rights; they will do so
themselves, sooner or later:
 In order for the Municipality
itself to proceed with a s.7 claim, it would need two things to
occur at this late date (keeping in mind that the hearing of the
human health aspect of the appeals is commencing in less than one
month and much of the written evidence has already been served and
filed): (1) permission to amend the constitutional question on p. 1
of the Notice to assert a violation of individual s. 7 rights, and
(2) permission, through a grant of public interest standing or some
other exercise of Tribunal discretion, to raise a s. 7 claim on
behalf of others....
 In considering the third public
interest standing factor, the Tribunal does not need to make an
abstract guess as to whether an individual person with standing to
raise a s. 7 Charter claim directly is likely to do so in the
context of a REA appeal. Individuals appeal REAs to the Tribunal
regularly. Even if the K2 project is not approved, then it is
likely that another individual will bring a s. 7 claim in a notice
of appeal of another project. The Tribunal therefore finds, in the
unique circumstances of this case, that the Municipality is not
well positioned to advance a s. 7 claim in relation to individual
s. 7 rights under public interest standing criteria or any other
source of discretion that may apply.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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